A
parole condition prohibiting a sex offender from using computers or otherwise
accessing the Internet is unlawful, at least where the underlying crime did not
involve a computer or the Internet, the Court of Appeal for this district ruled
yesterday.

Div.
Six held that a Ventura Superior Court judge was wrong when she said the
condition was properly imposed on a convicted child molester because it might
deter him from future criminality.

“Restrictions
upon access to the Internet necessarily curtail First Amendment rights,”
Presiding Justice Arthur Gilbert wrote. The importance of the Internet as a
means of communication necessitates that restrictions on its use be narrowly
tailored, the jurist explained.

The
court found it unnecessary to grant relief to the parolee, Ramon Stevens,
because the Board of Prison Terms modified the condition after the panel issued
an order to show cause. Stevens is now permitted to use a computer so long as
he does not access pornographic sites or communicate with minors.

Case
Not Moot

But
the panel denied the state’s request to dismiss the petition as moot. With over
115,000 parolees being released every year in California,
and many of them likely to wish to join the 200 million Americans estimated to
be using the Internet, a resolution on the merits is needed to provide guidance
to parole authorities, Gilbert said.

Stevens,
who pled guilty to molesting a child he had met in a youth program, was
released in 2002 after five years in prison. He was ordered not to “possess or
have access to computer hardware or software including the internet.”

In
his habeas corpus petition, Stevens alleged that the condition prevented him
from earning a living as a writer or Internet entrepreneur. Stevens represented
himself, while Deputy Attorney General Nicholas Paul argued for the state.

Gilbert
acknowledged society’s “strong interest in protecting its youth from the
harmful aspects of obscene material.” But federal appellate cases upholding
bans on computer use and possession by persons on parole or probation have
involved defendants who used computers to commit or facilitate crimes, he
commented.

Federal
Rulings Cited

Even
then, the jurist noted, the Second U.S. Circuit Court of Appeals has rejected
such bans, likening them to prohibiting someone convicted of mail fraud from
sending letters or someone convicted of telephone fraud from using a phone. And
the Third and Tenth circuits, Gilbert pointed out, have rejected absolute bans
on computer and Internet use in favor of an approach requiring more narrowly
tailored restrictions, such as unannounced inspections of hard drives and
computer disks to determine whether a parolee or probationer has used the
computer for an illegitimate purpose.

In
Stevens’ case, the Board of Prison Terms was “legitimately concerned that a
released child molester’s unfettered access to a computer might result in
criminal conduct,” the presiding justice wrote.

“But
BPT’s task was less daunting than it appeared to be,” Gilbert explained. It
could have monitored Stevens’ computer use through inspections, by placing
monitoring software on his computer that would automatically generate an e-mail
to his parole officer if he tried to access a pornographic site, or by
“surreptitiously inviting him to respond to government-placed Internet ads for
pornography.”

The
jurist referred to William S. Gilbert’s lyrics to “Pirates of Penzance,”
suggesting that a felon’s “capacity for innocent enjoyment is just as great as
any honest man’s.” It was at least the sixth time the jurist has cited the 19th
Century English bard—an inspiration, rather than a relation—in a published
opinion.